Free Speech and the Supreme Court
The Supreme Court handed down a decision in FEC vs Wisconsin Right to Life today. The case revolved around the McCain-Feingold restrictions on free speech. I'm still in the process of reading the opinion and figuring out what it all means. Since I don't have an opinion yet, I turned to SCOTUS Blog for their analysis.
First though, a note about the makeup of the justices who decided the case. Bomb Throwers and Dismantlers.
Scalia and Thomas seem to be pursuing a different path than Roberts and Alito. The former want to blow things up quickly; the latter want to take them apart slowly. (Kennedy, the swing Justice, does whatever the hell he wants-- because, as a swing Justice-- he can.)
In all three cases, we see that Scalia and Thomas are much more willing to overturn existing doctrines that they oppose. Roberts and Alito, on the other hand, want to chip away at the doctrines slowly, using distinctions that make little sense on their own, but undermine older precedents-- leaving the possibility that they will be ripe for overruling later on.
It is the difference between bomb throwing and dismantling.
Frankly, I'm more of a bomb thrower than a dismantler myself. That's why I like Judge Janice Rogers Brown so much. On the other hand, Roberts and Alito may be able to accomplish more through a slow, gradual chipping process. Take today's decision in WRTL today.
The 5-4 decision in WRTL is a blockbuster. Effectively, though silently, it overrules a central element in the Court's most recent prior confrontation with the campaign-finance problem at issue, the 5-4 decision in McConnell, issued only four years ago when Justice O'Connor (and Chief Justice Rehnquist) were on the Court. There is no doubt today's decision reflects a constitutional sea change that is likely to have dramatic effects on upcoming elections. Some will celebrate that change, others will bemoan it, but that the change is dramatic cannot be doubted.
Now, we are likely to see a return of the kinds of ads we saw before McCain-Feingold: ads that contain a fig-leaf of reference to issues that is just enough to give them constitutional protection, even if the ads are close to hard core efforts to influence election outcomes. For First Amendment libertarians, this outcome will be celebrated. For those who fear "undue influence" of corporations and/or unions over federal officeholders, this outcome will be a major blow.
In my writings on campaign finance, I have analogized the Supreme Court's campaign finance cases to the swing of a pendulum. We began with Buckley, which was a multi-authored schizophrenic opinion offering something (a ban on independent campaign expenditures by individuals) to those who believe that most campaign finance laws conflict with First Amendment rights of speech and association, and something else (upholding of campaign contribution limits) to those who believe that the government's interest in preventing corruption, insuring the integrity of the electoral process or promoting electoral equality (though the Buckley court itself eschewed that interest). The early post-Buckley cases, such as Bellotti, and NCPAC were deregulationist, and were followed by the period I've called the New Deference, where the four liberals on the Court, joined by Justice O'Connor, upheld a wide range of campaign finance laws, including major provisions of the McCain-Feingold law (the Bipartisan Campaign Finance Act, or BCRA) in a number of different cases. Last year's Randall decision showed Justice Breyer trying to salvage the campaign finance regime and prevent the Chief and Justice Alito from going to the deregulationist side. Today it is clear that those efforts have failed.
What's next? Expect a full, frontal attack on McConnell, likely manufactured by Jim Bopp, as invited by Justice Alito (not to mention Scalia, Kennedy, and Thomas). Within a few years, expect the Court to take another campaign contributions case, revisit Randall, and reconsider whether even higher contribution limits violate the First Amendment.
Today's decision in effect eviscerates that 60-year-old rule for all practical purposes -- it overrules Austin in all but name, and for the first time in 60 years establishes a constitutional regime in which corporations are entitled to the same First Amendment protections as individuals, notwithstanding that, as the Court stressed in Austin, corporations' "voice" in public debate is magnified considerably by virtue of numerous advantages that state law provides to such artificial entities.
That is to say: This is a very good day for the speech rights of corporations, and for the ability of government officials to engage in speech that favors religion -- but not such a good day for the speech rights of students who would "celebrate" drug use rather than debate whether it should be lawful.
FEC v. WRTL is the anti-McConnell. The majority and plurality opinions -- Chief Justice Roberts's opinion speaks for the Court only in the introductory and jurisdictional sections; the sections dealing with the challenge to electioneering communication section of the Bipartisan Campaign Reform Act (BCRA) were joined only by Justice Alito — breaks with McConnell at every level in the general approach to campaign finance regulation; in the doctrinal analysis of corporate electioneering communications; and in its specific holding concerning the constitutionality of the electioneering communication restriction.
At the highest level, WRTL rejects the view that campaign finance restrictions can be justified and sustained as democracy-promoting measures that advance government integrity. Where McConnell saw campaign finance jurisprudence as entailing the reconciliation of competing constitutional values — democracy and free speech — Chief Justice Roberts flatly proclaimed that WRTL is "about political speech" only. So much for Justice Breyer's theory of Active Liberty.
Do I know what all of that means? Not yet. But it's clear that a lot changed with today's case. As one of the "First Amendment libertarians", I'm overjoyed at the outcome of this case. I'd have preferred that the court blow up McCain-Feingold entirely, but I'll settle for a simple gutting.